BEFORE ROY NOBLE LEE, HAWKINS and PRATHER:
ROY NOBLE LEE, PRESIDING JUSTICE, FOR THE COURT:
Mona Marie Chatelain Churchill appeals from a decree of the Chancery Court of Harrison County granting Forrest William Churchill a divorce upon his cross-bill, and denying her claim for separate maintenance. Churchill cross-appeals on questions of evidence, alimony and custody of children.
On December 15, 1980, the parties entered into a separation and support agreement. Two children, Forrest Mynelle Churchill, age 4, and Curt Lewis Churchill, age 3, had been born of the marriage. Appellee agreed to pay appellant the sum of $500.00 per month for support of wife and children. The agreement provided that it would be rendered null and void in the event "either husband or wife initiates court action with a view toward terminating the marriage relation."
At the time of their marriage, both the parties were members of the U.S. Navy. At the time the agreement was executed, appellee was still serving in the Navy. Appellant filed her suit for separate maintenance and support of children on August 18, 1982. Appellee filed an answer and cross-bill for divorce on September 17, 1982. Appellee paid $500.00 per month to his wife until June, 1982, when he reduced the payment to $300.00 per month.
THE COURT ERRED IN GRANTING A DIVORCE TO APPELLEE, WHICH WAS AGAINST THE OVERWHELMING WEIGHT OF THE EVIDENCE.
The record shows generally that while the parties were living together in Puerto Rico, where appellee was assigned to Naval duty, they had periodic fights, the Naval authorities were called in, appellee usually was removed from the home and both were advised by Naval legal officers. Appellee is the only witness who testified in support of his
complaint for divorce on the ground of habitual cruel and inhuman treatment. His testimony was general, not specific, and follows:
Q. She has accused you of habitual cruel and inhuman treatment and said that the reasons for that was that you argued with her and that you were guilty of drunkenness and you were guilty of physical abuse. How do you respond to those allegations?
A. I would have to say there is just about no truth whatsoever. If there was any physical abuse, it was in my attempt to try to get away from her to avoid a fight by just trying to leave the area, which is my normal manner; I will just walk away and won't discuss it if it is getting too hot and she will jump right on you and won't allow you to get away.
THE COURT: She physically attacked you?
A. Yes, sir, on numerous occasions while I was trying to leave the quarters.
THE COURT: Are you telling the Court that your living with that lady in Puerto Rico was of such nature that it affected your job - her actions ...